Byrne v Dunne - [1910] HCA 75

JAMES BYRNE.

THE MOST REVEREND ROBERT DUNNE

RESPONDENTS.

AND ANOTHER

DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Will-Construction-Charitable trust-Gift for religious purposes-Uncertainty-

Overriding trust-Gift of residue to Roman Catholic Archbishop and his successors-Gift to be used and expended wholly or in part as donee may judge most conducive to the good of religion-Presumption against intestacy.

A testator, a Roman Catholic priest, left the residue of his estate to the Archbishop of his diocese and his successors to be used and expended, wholly or in part, as the Archbishop should judge most conducive to the good of religion in the diocese.

11 CLR 638

Held, per tot. cur., that the gift of the residue was not a personal gift, but a gift upon trust.

Held, by Griffith C.J., Barton J. and Isaacs J. (O'Connor J. and Higgins J. dissenting), that the gift was uncertain both as to its object, and as to the amount to be expended by the donee, and that there being no general over- riding charitable trust, the gift failed.

Per Griffith C.J.-' presumption against intestacy cannot be called in aid for the purpose of supporting a gift in trust which is impeached on the ground that the trusts are too indefinite for the Court to execute.

Per Higgins J.-There is a presumption that when a man sits down to make a will he intends to dispose of all his property and this presumption is especially applicable where the difficulty arises in a gift of residue.

Decision of the Supreme Court Byrne v. Dunne, 1910 St. R. Qa., 265,

APPEAL by the plaintiff from the decision of the Supreme Court of Queensland upon the hearing of a special case stated by the consent of the parties. The plaintiff claimed, as one of the next of kin of Denis Joseph Byrne, of Dalby in the State of Queens- land, a Roman Catholic clergyman, that on the true construc- tion of the will he was entitled to a share in the residue. The defendants were the executors of the will. The testator died on 6th November 1907, and probate of his will was granted to the defendants on 26th March 1908. Dalby is in the diocese of Brisbane.

The testator by his will gave certain legacies to various bene- ficiaries, and the will then proceeded: " And I will and bequeath all the aforesaid legacies free of probate duty and all other expenses, and that the residue of my estate should be handed to the Roman Catholic Archbishop of Brisbane and his successors to be used and expended wholly or in part as such Archbishop may judge most conducive to the good of religion in this diocese."

The testator's estate consisted of personal property situated in Queensland. The defendant, the Most Reverend Robert Dunne, is the Roman Catholic Archbishop of Brisbane.

The question submitted for the opinion of the Supreme Court,

SO far as material to this report, was whether the bequest in the will…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Byrne v Dunne

Details

AGLC: Byrne v Dunne [1910] HCA 75
Case: [1910] HCA 75
Decision Date: 16 December 1910

CaseChat Overview and Summary

The appeal concerned the construction of a will made by a Roman Catholic priest. The testator bequeathed the residue of his estate to the Roman Catholic Archbishop of Brisbane and his successors, to be used and expended, wholly or in part, as the Archbishop judged most conducive to the good of religion in the diocese. The plaintiff, a next of kin of the testator, sought a declaration that he was entitled to a share of the residue, arguing the bequest was void for uncertainty. The Supreme Court of Queensland had previously held the gift to be a valid charitable trust.

The central legal issue before the High Court was whether the residuary bequest constituted a good charitable gift, or if it failed for uncertainty. This required the Court to determine if the testator had created a binding trust for charitable purposes, or if the discretion granted to the Archbishop allowed for the application of funds to non-charitable objects, thereby rendering the trust too indefinite to be executed by the Court.

A majority of the High Court, comprising Griffith C.J., Barton J., and Isaacs J., found the gift to be uncertain in both its objects and the amount to be expended. They reasoned that the words "wholly or in part" and the discretion given to the Archbishop to determine what was "most conducive to the good of religion" allowed for the application of funds to purposes that might be religious but not necessarily charitable in the legal sense. The Court held that there was no general overriding charitable trust that would confine the Archbishop's discretion to exclusively charitable objects. The presumption against intestacy was deemed insufficient to support a gift impeached for indefiniteness. O'Connor J. and Higgins J. dissented.

The appeal was allowed, and the gift of the residue was declared void for uncertainty. Consequently, the residue of the testator's estate was to be distributed among his next of kin.

Orders